Citation Nr: 1026057
Decision Date: 07/13/10 Archive Date: 07/19/10
DOCKET NO. 06-27 991 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne,
Wyoming
THE ISSUE
Entitlement to service connection for squamous cell carcinoma
(cancer) of the tongue, to include as due to exposure to
herbicides.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Jebby Rasputnis, Associate Counsel
INTRODUCTION
This matter was last before the Board of Veterans' Appeals
(Board) in March 2009, on appeal of an August 2004 rating
decision of the Cheyenne, Wyoming regional office (RO) of the
Department of Veterans Affairs (VA). The RO denied the Veteran's
claim and the Board remanded for additional development.
Recently issued precedent by the appellate courts mandates that
this matter again be REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify the
Veteran if further action is required.
REMAND
The law mandates that provide a medical examination when
necessary to make a decision on the claim. 38 U.S.C.A. §
5103A(d); 38 C.F.R. § 3.159 (2009). The claims file reflects
that the Veteran was afforded a VA examination in July 2004. The
examination report reflects that the examiner reviewed the claims
file and noted both that the Veteran contended that exposure to
Agent Orange caused his cancer and that he reported smoking
cigarettes, approximately one pack a day, since age 17 until his
cancer diagnosis. However, the examiner did not provide an
opinion as to whether or not the Veteran's tongue cancer was
likely related to his service or any in-service exposure to Agent
Orange.
With regard to disabilities attributed to exposure to Agent
Orange, the law provides that, for veterans who served in the
Republic of Vietnam during the period beginning on January 9,
1962, and ending May 7, 1975, service connection may be presumed
for certain diseases (enumerated by statute and regulations) that
become manifest within a particular period, if any such period is
prescribed. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Although,
based on his service in Vietnam, the Veteran is presumed to have
been exposed to Agent Orange, his diagnosed squamous cell
carcinoma (cancer) of the tongue is not among the disorders
presumptively linked to herbicide exposure. 67 Fed. Reg. 42600
(June 24, 2002). However, the Board notes that he may still,
under applicable laws and regulations, show service connection on
a non-presumptive basis, from disability or injury incurred in or
aggravated by active military service. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. § 3.303(a) (2009).
Although there is no medical opinion of record discussing any
possible relationship between the Veteran's diagnosis and any
exposure to Agent Orange, the Board observes that the United
States Court of Appeals for the Federal Circuit (Federal Circuit)
has explicitly rejected the view that "competent medical
evidence is required ... [when] the determinative issue involves
either medical etiology or a medical diagnosis." Davidson v.
Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) ((Holding
that lay evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition, (2) the layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony
describing symptoms at the time supports a later diagnosis by a
medical profession)) see also Buchanan v. Nicholson, 451 F.3d
1331 (Fed. Cir. 2006) (Holding that VA cannot determine that lay
evidence lacks credibility merely because it is unaccompanied by
contemporaneous medical evidence).
The Veteran is presumed to have been exposed to Agent Orange
during his service in Vietnam, has claimed service connection for
tongue cancer secondary to Agent Orange exposure, and the 2004 VA
examiner did not address the likelihood that any such exposure
caused tongue cancer. As such, the Board finds the 2004
examination report inadequate for rating purposes and that
another examination is warranted. If the findings on an
examination report are incomplete, it is incumbent upon the
rating board to return the report as inadequate for evaluation
purposes. See 38 C.F.R. § 4.2.
As noted above, this matter was remanded by the Board in March
2009. The Board directed that the RO make additional efforts to
obtain the Veteran's service treatment records. The record
reflects that the RO made such efforts, but was unsuccessful and,
in August 2009, issued a formal finding on the unavailability of
the Veteran's service treatment records. The Veteran was
notified of the unavailability of his records in an August 2009
letter.
When VA is not able to retrieve service medical records, there is
a heightened duty to assist veterans with the development of
their claims. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).
As part of the duty to assist, VA must obtain Social Security
Administration (SSA) records when they may be relevant. Voerth
v. West, 13 Vet. App. 117, 121 (1999). A May 1999 private
treatment note observes that the Veteran was receiving treatment
for cancer and states that he "is eligible for... Social Security
disability - application started today." However, no SSA
records have been associated with the claims file. Accordingly,
the RO should contact the SSA and ascertain if the Veteran has
applied for SSA benefits and if so, obtain copies of the relevant
records, including the complete medical records upon which any
decision was based. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §
3.159(c)(2) (2009). Although not dispositive as to an issue that
must be resolved by VA, any relevant findings made by the SSA are
evidence which must be considered. See White v. Principi, 243 F.
3d 1378 (Fed. Cir. 2001); Wensch v. Principi, 15 Vet. App. 362
(2001).
Accordingly, the case is REMANDED for the following action:
1. The RO must afford the Veteran an
additional opportunity to submit any
information that is not evidenced by the
current record, to include, but not limited
to, any additional VA, or non-VA,
treatment. The Veteran should be provided
with the necessary authorizations for the
release of any private treatment records
not currently on file. The RO/AMC must
then obtain these records and associate
them with the claims folder. If VA is
unsuccessful in obtaining any medical
records identified by the Veteran, it must
inform him and provide him an opportunity
to submit copies of the outstanding medical
records.
2. The RO/AMC will inquire of the Veteran
whether or not he is in receipt of SSA
disability benefits relevant to the matter
on appeal and, if so, will obtain from the
SSA a copy of the evidence relied on in its
decision regarding any such claim for
benefits. This evidence should specifically
include, but is not limited to, medical
records and the SSA hearing transcript.
Those records will be associated with the
claims folder.
3. The RO must then schedule the Veteran
for an examination at an appropriate VA
facility with a health care provider of
suitable background and experience to
determine whether his squamous cell
carcinoma of the tongue is related to, or an
incident of, his active duty service, to
include exposure to Agent Orange. The
following considerations will govern the
examination:
a. The entire claims folder and a copy
of this remand must be made available
to the examiner in conjunction with the
examination. The examination report
must reflect review of pertinent
material in the claims folder.
b. After reviewing the claims file and
both interviewing and examining the
Veteran, the examiner must conduct any
necessary tests or studies and provide
findings with respect to any diagnosed
condition. The examiner should offer
an opinion, consistent with sound
medical principles, as to whether
cancer of the tongue resulted from
disease or injury incurred in or
aggravated by service, to include
exposure to herbicides, or had its
onset in service.
c. Any necessary tests or studies must
be conducted, and all clinical findings
should be reported in detail. In all
conclusions, the examiner must identify
and explain the medical basis or bases,
with identification of pertinent
evidence of record. If the examiner is
unable to render an opinion without
resort to speculation, he or she should
explain why and so state.
4. After the above has been completed, the
RO must review the claims file and ensure
that all of the foregoing development
actions have been conducted and completed in
full. If any development is incomplete,
appropriate corrective action is to be
implemented. If any report does not include
adequate responses to the specific opinions
requested, it must be returned to the
providing physician for corrective action.
5. Thereafter, the RO must consider all
of the evidence of record and readjudicate
the Veteran's claim for service
connection. The Veteran and his
representative must be provided a
supplemental statement of the case (SSOC).
The SSOC must contain notice of all
relevant actions taken on the claim, to
include a summary of the evidence and
applicable law and regulations considered
pertinent to the issues currently on
appeal. An appropriate period of time
should be allowed for response.
Thereafter, if indicated, the case should
be returned to the Board for appellate
disposition.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The Veteran is hereby notified that it is his responsibility to
report for any examination and to cooperate in the development of
the claim. The consequences for failure to report for a VA
examination without good cause may include denial of the claim.
38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran
does not report for any scheduled examination, documentation
should be obtained which shows that notice scheduling the
examination was sent to the last known address. It should also
be indicated whether any sent notice was returned as
undeliverable.
The RO and the Veteran are advised that the Board is obligated
by law to ensure that the RO complies with its directives, as
well as those of the appellate courts. It has been held that
compliance by the Board or the RO is neither optional nor
discretionary. Where the remand orders of the Board or the
Courts are not complied with, the Board errs as a matter of law
when it fails to ensure compliance. Stegall v. West, 11 Vet.
App. 268, 271 (1998).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).